IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal
Transfer Application No.D- 92 of 2011
Before: Mr. Justice Ahmed Ali M.Shaikh,
J.
Mr.Justice Salahuddin Panhwar, J.
Applicant : Ghulam
Akber Jatoi, through
Mr.Ghulam
Shabbeer Shar, Advocate.
Respondents: Muhammad Ameen, Jawaid Ali, Saeed
Ahmed and Noor
Through:
Mr.Sahib Khan Kanasero, Advocate.
The
State, through: Mr.Syed Sardar Ali Shah, A.P.G.
Date
of hearing 20th.
December, 2012.
O R D E R
SALAHUDDIN
PANHWAR, J:- Through the instant transfer application the applicant/complainant
Ghulam Akber Jatoi is seeking transfer of Special Case No. 102 of 2011 (Re- State
V. Muhammad Ameen and others) , arising out of Crime No. 132 of 2011 of Police Station,
registered for offences punishable Under sections 302, 365-A, 511, 147, 148,
149 and 7- Anti-Terrorism Act, 1997 from the file of the Court of Judge Anti-Terrorism Court, Khairpur to the
Court of Judge, Anti-Terrorism, Jacobabad.
02. The
facts, relevant for decision of this transfer application are that complainant
Ghulam Akber Jatoi lodged FIR against the Respondents No.1 to 3 and others,
stating therein, that on 04.1.2011, he along with his cousin Shah Bakhsh, relative
Wazir Ali and brother Pehlwan Ghulam
Sarwar, who participated in “Malhakro”, were on the way to the Otaq of Wadero
Sheral Palh, while five persons duly armed with weapons way-laid them; they
identified them as accused Muhammad Ameen Jagirani, Jawaid Jagirani, Noor
Jagirani, Saeed Ahmed Jagirani , all were having Kalashnikovs in their hands. They dragged his brother
Ghulam Sarwar Jatoi and said that they are kidnapping him for want of ransom. Ghulam
Sarwar offered resistance, meanwhile accused Saeed Ahmed caused direct
Kalashnikov fire shot injury to Ghulam Sarwar with intention to commit murder and
in result whereof he fell-down; thereafter
all the other accused persons made firing; and due to such firing one
accused Ameen Jagirani also had received injuries. Thereafter several persons
converged there : injured Ghulam Sarwar succumbed to injuries, thereafter F.I.R
was lodged. After usual investigation, case was challaned against the
assailants.
03. Learned counsel for the
applicant/complainant inter-alia contended that three accused persons namely
Jawaid, Saeed Ahmed and Noor are absconders, and they have issued threats of
dire-consequences to complainant and P.Ws, therefore, the complainant party is
in serious apprehension that if they will attend the trial court, they will be
murdered in the way; complainant and P.Ws are residents of District Shikarpur,
whereas the trial court is located in District Khairpur Mir’s, so also the
respondents / absconding accused No.1 to 3 are also residing in District
Sukkur; trial Court has issued the summons for proceeding of the case but
complainant party is under threats hence is unable to attend the trial Court. Counsel
has relied upon the case of Ahmed Ali Khan and other Vs. The State and 08
others reported in 2007 Y L R 1935; case of Ahmed Omar Saeed Shaikh Vs. The
State, reported in 2002 SCMR 1562; case of Haji Khawar Saleem Vs. The State
reported in 2001 SCMR 905.
05. Conversely
Mr.Sahib Khan Kansero, learned counsel for the Respondents/accused No.1 to 3
has argued that the complainant is absconder in another, case and he is
deliberately avoiding to proceed with the case; accused persons have not issued
threats to complainant and witnesses, therefore, plea of apprehension is
without any substance; complainant with ulterior motive intend to get transfer
of this case to area, where they are residing with intention to cause murder of
accused persons. He has relied upon the case of Noor Ahmed Vs. The State
reported in 2009 M L D 22.
06. Mr.
Syed Sardar Ali Shah learned A.P.G for the State adopted the same arguments of
learned counsel for the Respondents/accused No.1 to 3.
07. We
have heard the parties’ counsels’ and have perused the record. From the perusal
of record; it reveals that the applicant/complainant has not mentioned the
date, time and place regarding threats caused by absconding accused/respondents
and also transfer application is silent that under what manner they issued
threats to him. It is also matter of record that the applicant/complainant has
not approached any concerned police station, regarding such apprehension.
Further, it is also evident that applicant/complainant has not moved any
application before any authority for the purpose of protection hence the
claimed apprehension appears to be vague. However, we are conscious of the
facts that a system of Criminal Administration of justice cannot survive
without assuring protection to a witness who dares to put his life in danger by
coming forward as a witness in heinous offences, more particularly, when it is
alleged that witnesses have been issued threats so as to avoid their
appearances in court (s) for deposing against accused of heinous crimes, in
particular. It is material to mention that if things are taken properly and
within spirit of procedure; a witness
has to attend the court for one or two dates for his examination because
through National Judicial Policy much emphasis has been put that witness,
appeared should not go unexamined without any cogent reason. A witness on his
examination is not required to attend the court and the complainant can well be
represented through his counsel. In view of such back ground, though the
claimed apprehension appears to be without any proof yet since the same has
specifically been claimed by the applicant / complainant, therefore, the same
cannot be ignored straight away in particularly, when such apprehension is a
threat to life. In the instant case both
the parties are claiming danger of their lives in result of transfer,
therefore, keeping in view the legal position that the production / appearance
of accused is necessary for trial of the matter except where the same is
dispensed with by the court itself, we find that it will be proper to provide
complete protection to the applicant and his witnesses for their way to attend
the hearing before the trial court, more particularly, when, there is no
allegation against the honesty of the learned trial court judge. It is worth to
add here that there is no cavil to the proposition that the court while
considering the transfer of proceedings has to consider the conveyance of both
the parties but it is equally settled rule that conveyance of accused and his witnesses
outweighed the conveyance of the complainant and his witnesses.
08. Regarding
the case law, we have examined the case keeping in view that in criminal administration
of justice, each case has to be decided on its own peculiar circumstances and
merits. In case of Ahmed Ali Khan and others (supra) “it is held that Court has to place itself in
position of the applicant while examining the reasonableness of apprehension
which may entitle a party to seek transfer”. In case of Haji Khawar Saleem (supra) “the applicant had
challenged the manner in which the proceedings were taken by the trial court
and orders passed by the trial court”. In
case of Ahmed Omar Saeed Shaikh and 03 others (supra), “this case relates to
the murder of Denial Pearl murder case, accused was declared as a dangerous
criminal, therefore, due to apprehension; case was transferred from
12. After
careful examination of above precedents, we are of the considered view that
same are not helpful to the case of applicant/complainant as facts and circumstances of cited case are
entirely different from the case, in hand,
and in similar circumstances, Hon’ble Supreme Court in case of Muhammad
Nawaz Vs. Ghulam Qadir and others reported in P L D 1973 SC 327 has held:-
“what is a reasonable
apprehension must be decided in each case with reference to the incidents and
the surrounding circumstances; and the court must endeavor, as far as possible,
to place itself the position of the applicant seeking transfer and look at the
matter from his point of view, having due regard to his state of mind and the
degree of intelligence possessed by him. Nevertheless, it is not every incident
regarded as unfavourable by the applicant
which would justify the transfer of the case. The test of reasonableness of the
apprehension must be satisfied, namely, that the apprehension must be such as
reasonable man might justifiably be accepted to have.”
13. Keeping
in view the given circumstances and dictum laid-down by the Superior Court, we
are of the view that the instant application is devoid of merits; which is
accordingly dismissed. However, we direct the trial Court to provide complete
protection to the complainant and his witnesses by providing police escort from
their residents to the court when their attendance is required and such request
has been made by their counsel.
JUDGE
JUDGE
Announced on………………
A.R.BROHI